Texas Stamp

New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012

Texas Rules of Appellate Procedure Rules 80-80.1, effective December 1, 2019
The State Prosecuting Attorney must be served on every petition for discretionary review or brief filed by any party or amicus curiae in the Court of Criminal Appeals, including replies, responses, amendments, and supplements.

WHEELER, CHASE ERICK

PD-0388-19 09/25/2019

“Can an officer act in objective good faith by relying on the magistrate’s approval of a warrant that is defective in form?”

Wheeler was arrested for driving while intoxicated.  The officer used an affidavit form to secure a warrant for a blood draw. He filled out the form and signed it but did not swear to it in front of anyone. A magistrate reviewed the application and signed it where the person to whom the officer should have sworn it would have signed it. Wheeler’s blood was drawn.

Wheeler moved to suppress the blood evidence. The officer testified that he did not know he needed to swear to the affidavit in front of anyone. The magistrate acknowledged that she should not have signed where she did but that affidavits from that agency are usually sworn to in front of another officer or notary.  The trial court denied Wheeler’s motion because the officer acted in good faith upon a warrant signed by a neutral magistrate and based on probable cause.

The court of appeals reversed. Wheeler did not challenge the neutrality or probable cause requirements set out in Tex. Code Crim. Proc. art. 38.23(b), and the court of appeals rejected any argument that a warrant had not issued. However, it held that the officer could not rely in good faith on the warrant because no objectively reasonable officer would believe that a sworn affidavit is not required.

The State argues that the court of appeals incorrectly focused on the reasonableness of the officer’s warrant preparation instead of his reliance on a judicially approved warrant. Numerous courts have held that reliance on a warrant with technical deficiencies is objectively reasonable. Once a warrant based on probable cause is issued by a neutral magistrate, it should not matter that the officer who executed the warrant was responsible for those technical deficiencies.

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